A matter of law, not policy

 

Stripped of political implications, the case is one that is easily determined. It was made controversial by certain quarters for their own purposes. Regrettably, in failing to recognise the controversy for what it was, the Court of Appeal may have inadvertently laid the ground for the further machinations of those who would divide this nation.

Malik Imtiaz Shawar 

IT LOOKS fairly certain that the decision of the Court of Appeal on the use of the word Allah in the Malay version of the newsletter of the Catholic Church, The Herald, will be appealed to the Federal Court. It is improbable that the apex court will deny permission to appeal, considering the obvious constitutional implications of the matter.

It is obvious that the Federal Court will have much to consider. Among the criticism levelled against the Court of Appeal is the suggestion that the Court had made a policy decision, as opposed to a legal one. Considering the reasons advanced by the judges concerned for their decision, there is substance to this complaint.

The Court of Appeal was required merely to determine whether the High Court judge had arrived at a decision that was consistent with the relevant legal principles. That decision related to only one question — whether the home affairs minister had exercised his powers in a manner that was justified in law in imposing the condition that the word Allah was not to be used in the publication. And while the Court of Appeal would have been right to interpret such law as it was required to for the purpose of deciding whether the High Court judge had erred, it ought not have gone so far as to effectively develop a legal framework for the protection of Islam.

Settled principles of law dictate that the courts are not to substitute the decisions of administrators with those of the courts. All that the courts can do in affording judicial review is to consider whether the administrator concerned, in this instance the minister, had adopted the correct decision-making process, and whether the administrative decision challenged was reasonable having regard to the circumstances as they stood at the time the administrative decision was made. These legal constraints were in fact recognised by the judges of the Court of Appeal who discussed them in their respective judgments.

In this context, all that the Court of Appeal ought to have done was to enquire into the reasons advanced by the High Court to quash the decision of the minister. These reasons ultimately centred on one primary conclusion — that the minister had no reasonable basis on which he could objectively conclude that the use of the word Allah in The Herald would be a threat to public order.

A review of this conclusion by the Court of Appeal would have entailed an objective consideration of the basis of the minister’s decision, that is the factual considerations that the minister took into account at the time he made the decision, with a view to determining whether his decision was one that any reasonable person in the minister’s shoes would have made.

For this purpose, negative reactions on the part of the public to the decision of the High Court were not relevant, it being a matter of established principle that the popularity of a decision of the courts is not the yardstick by which the correctness of that decision is to be measured. Were it otherwise, many a litigant would arrange for public controversy in order to gain a foothold in the appellate courts.

It must be appreciated that at the most fundamental level, the complaint of the Catholic Church was that the condition impacted on the right of the Church and the members of its congregation to express themselves fully. And while it is tempting to characterise disputes of such a nature as concerning the freedom of religion, this was really a case about the freedom of expression.

From a constitutional standpoint, it is an established principle that all Malaysians have the right to say what it is they want, save where their right to do so has been limited by law on grounds of national security and public order. Such law must, however, be reasonable and the restraint on expression limited to only what is essential to achieve the aim of the law. These constraints apply equally to any administrative action sanctioned by law.